Restrictive covenants are common conditions of zoning approvals. Municipal boards typically require applicants to record restrictive covenants as a condition of approval. These restrictive covenants are drafted to “run with the land,” meaning the covenants automatically transfer with the property.

Generally, restrictive covenants are enforceable in New York, provided they are reasonable and benefit all property owners in the community and are not inconsistent with public policy or violate a property owner’s rights. See, Deak v. Heathcote Association, 191 AD2d 617 (2d Dept 1993) (party seeking extinguishment of the restrictive covenants must prove (1) lack of benefit derived from enforcement of the restriction, and (2) legally cognizable reason for the extinguishment of the restriction under RPAPL 1951, such as “changed conditions” which render the purpose of the restriction incapable of being accomplished).

Continue Reading Restrictive Covenants: The Devil Is in the Details…

On March 3, 2025, Senate Bill S584, sponsored by Sen. James Skoufis, was introduced to the NYS Senate during the 2025-26 NYS Legislative Session (the “Bill“). The Bill aims to amend paragraph (b) of subdivision 1 of section 420-a (“420-a“) of the New York State Real Property Tax Law (the “RPTL“), and has a stated purpose to “…prohibit properties that are in violation of a local government’s zoning laws from receiving a property tax exemption.” The Bill should be closely watched by all non-profit organizations that own real property located in New York State.

420-a provides significant monetary relief to non-profit organizations that own real property. This relief is crucial to ensure the continued financial stability and sustainability of these organizations, and thus, their ability to continue to provide critically needed services, programs and assistance to many underrepresented and underserved communities. Presently, 420-a does not contain a prohibition on the basis of zoning.

420-a provides qualifying non-profit property owners in New York State with a complete property tax exemption for real property used exclusively for the following qualifying purposes, “…religious, charitable, hospital, educational, or moral or mental improvement of men, women or children purposes, or for two or more such purposes…” However, to the extent that any portion of the real property is (i) not used exclusively to carry out one or more of the qualifying purposes identified in 420-a, or (ii) is used for for-profit purposes, such portions are subject to taxation, with only the remainder of the real property being tax exempt.

The Bill proposes to take effective immediately yet fails to provide framework or guidance regarding how the prohibition will ultimately be determined and enforced. By its text, the Bill casts a wide net and seeks to capture any real property which “…is being used in violation of applicable zoning laws.” However, it does not seem equitable for a prohibition to be put in place prior to (a) the non-profit organization receiving a violation notice from a governmental or municipal authority regarding any defective conditions, and (b) the passage of a reasonable cure period for the non-profit organization to remedy any such violation notice prior to losing the real property tax exemption.

Additionally, the Bill is unclear as to whether the prohibition of the 420-a exemption applies to (i) only the period during which a violation exists, (ii) the then-current tax year during which a violation exists, or (iii) any retroactive and/or future tax periods. The Bill also fails to address whether properties that are “grandfathered” and/or legal and non-conforming are subject to the prohibition. These properties typically do not meet current zoning laws, but are permitted due to an exception or variance, especially if constructed prior to the enactment of the current laws.

If a non-profit organization has outstanding zoning violations, or has received written notice of pending zoning violations, affecting owned real property currently receiving the 420-a exemption, it may be prudent for the organization to proactively address and remedy such issues during the pendency of the Bill.

We are closely monitoring the progress of the Bill and how it might impact clients and friends of the firm.

All civil judicial proceedings must be in the form of an action – unless otherwise authorized by statute, i.e. in the form of a special proceeding (see CPLR 103[b]). While most lawsuits are brought solely in the form of either a “special proceeding” or an “action,” land use litigants frequently combine the two into a “hybrid proceeding-action.” In the land use context, special proceedings are commonly brought pursuant to CPLR Article 78 to challenge the determinations of local bodies or officers, and litigants will often simultaneously bring an action to assert one or more plenary claims for, among other things, declaratory relief.

The CPLR requires specific papers and pleadings for the commencement and prosecution of each type of lawsuit, and, concomitantly, for a hybrid lawsuit. A litigant’s failure to strictly comply with the CPLR’s requirements may render certain claims jurisdictionally defective and/or untimely. A recent Decision, Order and Judgment of the Supreme Court, Albany County, in Clean Air Coalition of Western New York, Inc. v New York State Pub. Serv. Commn. (2024 NY Slip Op 24288 [Sup Ct, Albany County 2024]), discussed below, is illustrative.

Continue Reading Hybrid Highlights: Avoiding the Pitfalls of a Land Use Litigation Technique

The Nature Conservancy (TNC), a global environmental nonprofit founded in 1951, is offering grants of up to $50,000 across Long Island and New York State to support conservation and climate adaptation initiatives, with a focus on projects that protect lands and waters crucial for adapting to climate change.

This initiative is part of TNC’s 2025 Climate Resilience Grant Program (CRGP), which awards grants to local organizations and supports fee and easement acquisitions connecting critical floodplains and shorelines, helping to mitigate flooding and erosion.  The program also provides funding for organizational capacity-building, as well as planning and strategy development.  

TNC prioritizes projects that involve meaningful community engagement, especially in underserved and frontline communities, and that work with groups historically excluded from conservation, aiming for more equitable outcomes for people and communities.

Continue Reading Empowering Long Island’s Future: Nature Conservancy Supports Local Conservation Efforts
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Jocke Wulcan, Unsplash

Amidst the holidays and end-of-year scramble, New York State Governor Kathy Hochul vetoed legislation that would have required Industrial Development Agencies to have school district and labor union representatives on their governing board and/or board of directors.

Industrial Development Agencies, commonly known as “IDAs,” are public benefit corporations, a form of governmental entity created by the New York State Legislature. IDAs are authorized by New York State law to grant economic incentives, including tax abatements and Payment-In-Lieu-of-Tax (“PILOT”) Agreements, to businesses to encourage local economic development and growth, and meaningful job creation.

IDA boards are comprised of private citizens appointed by local government, with board members generally having significant experience in private sector business, economic development, finance and government.

Continue Reading Critical End-of-Year Veto for Legislation Impacting Industrial Development Agencies

It is no secret that the retail market has faced significant challenges over recent years. With the rise in e-commerce came a prediction of the decline of the brick and mortar retail store. This prediction was reinforced with major retail brands, such as Barneys, Lord & Taylor, and Century 21 facing bankruptcy. Pair that with shrinking discretionary budgets, a global pandemic and ever-changing consumer preferences, many claimed the retail sector was on its death bed. Instead, what we have seen is an industry that is well versed at adaptation and continues to navigate these changes.

According to Cushman & Wakefield’s most recent report, “many markets with large urban centers saw positive demand in Q3, including San Francisco, Dallas/Ft. Worth, Boston, Chicago, New York and Washington D.C.”  In fact, the report also showed the “national vacancy rate remains near a historic low of 5.4%.” In the wake of much doubt about the future of retail, we’ve seen retail adapt and prosper with historically low vacancy rates. Now is no different with the retail market’s newest adaptation, and its strategy may result in retail being more permanent than ever.

Continue Reading New York Retail’s New Frontier: The Shift from Leasing to Owning Space in a Changing Market

Failing to file a notice of claim pursuant to Civil Practice Law and Rules (“CPLR”) Section 9802 can become a trap for the unwary litigator who commences a hybrid proceeding-action (Article 78 claim(s) combined with plenary cause(s) of action) or a strict Article 78 proceeding against a village (see South Nyack Police Assn. v Village of South Nyack, 229 AD3d 635 [2d Dept 2024]).

Section 9802 provides that “no action shall be maintained against the village upon or arising out of a contract of the village” unless a notice of claim has been served. Although this language appears limited, Courts have interpreted it more broadly. Thus, a party bringing any action against a village must plead and prove, as a condition precedent to the litigation, that the party served a written verified notice of claim. The party’s failure to comply with this requirement can be fatal to the claim(s) asserted.

In South Nyack Police Assn., police officers and their association commenced an Article 78 proceeding against the village, mayor, and trustees, seeking to compel the village to compensate the officers for unused sick time. The Supreme Court, Rockland County, converted the Article 78 proceeding into a plenary action for breach of contract and declaratory relief, and denied village’s motion to dismiss. Upon reargument, the Supreme Court granted the village’s motion to dismiss based on the officers’ and association’s failure to comply with Section 9802 (i.e. the officers and association failed to serve a notice of claim).

Continue Reading The Importance of Filing a Notice of Claim Against A Village: CPLR 9802 – A Trap for the Unwary Litigator
Cute piggy bank
Fabian Blank, Unsplash

The good-guy guaranty is a commonly used form of security in the field of commercial leasing.  Despite appearing straightforward, the fundamentals of a good-guy guaranty are often misunderstood by landlords, tenants and brokers.  Failing to understand the implications of a good-guy guaranty may result in unintended consequences for the landlord, the tenant and the guarantor. 

Guaranties are an important component of commercial lease negotiations.  Before signing a lease, a landlord will typically review and assess a tenant’s financial information.  If the tenant doesn’t have sufficient credit, the landlord may require a third party to guaranty the lease.  In the context of leasing, a guaranty is a third party’s promise to pay and perform the tenant’s obligations arising under a lease.  

If the landlord requires a full guaranty, the guarantor will be asked to guaranty all of the tenant’s lease obligations.  Alternatively, a landlord may ask for a limited guaranty, of which there are several variations.  Some limited guaranties cap the guarantor’s exposure to a certain dollar amount, while others may terminate after a period of time. 

Continue Reading Understanding Good-Guy Guaranties: What Every Landlord and Tenant Should Know
The most powerful word in the world pops up everywhere. Ironically, this is on Sandown Pier on the Isle of Wight (UK) — a place that has not changed for 30 years.
Ross Findon, Unsplash

The Upcoming 7th Revision to the Title Insurance Rate Service Association (TIRSA) Rate Manual is effective on October 1, 2024

What is TIRSA?

The Title Insurance Rate Service Association (TIRSA) is an organization licensed by the New York State Department of Financial Services that provides guidelines for the pricing and availability of title insurance premiums and products in New York State. Since 1993, TIRSA has published, and revised, its TIRSA Rate Manual, which sets forth rules, definitions, risk classifications, premiums and rates for title insurance policies, endorsements and other forms used by members of TIRSA. Notably, any deviations from the TIRSA Rate Manual must be approved by the Superintendent of the New York State Department of Financial Services. The 7th revision to the TIRSA Rate Manual goes into effect on October 1, 2024.

Continue Reading A (title) Change Is Gonna Come
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In City of New York v Ball, 2024 NY Slip Op 24179 [Sup Ct, Albany County 2024], the Albany County Supreme Court upheld a determination of the Commissioner (“Commissioner”) of the Department of Agriculture and Markets (“Department”) that concluded the City of New York’s (“City”) local law banning food establishments from selling or serving foie gras and other force-fed products (“Foie Gras Ban”) unreasonably restricted and regulated farming operations in “upstate” New York.

This case concerned preemption and a conflict between State and local policies. The Court addressed the Commissioner’s/Department’s State agency power to effectively overrule local elected officials and the will of their electorate. At issue was whether an indirect, extraterritorial restriction or regulation falls within the purview of the farming protection framework, given that City’s Foie Gras Ban affected farming operations situated in Sullivan County – approximately 70 miles north.

Continue Reading Foie Gras Faux Pas: City Runs A-fowl of State Farming Protections